Who you are complicates law in tribal courts

The defendant was Ute and had been charged with offenses stemming from a high-speed police chase between Towaoc and Teec Nos Pos and back, involving extreme intoxication and changing drivers while traveling at more than 90 mph. The chase ended when the car was forced off the road by tribal police.

I was serving as a judge at the Ute Mountain Ute tribal court at the time and the defendant pleaded guilty at his arraignment. I ordered a pre-sentence evaluation. Consistent with the courts practice, the defendant was released on his own recognizance and ordered to return to court for sentencing. I consistently sentenced all drunk drivers to serve actual jail time and suspect the defendant became aware of this after his release. He failed to appear at the sentencing hearing, and I issued an arrest warrant. The defendant was on the lam for the next six months.

Shortly after the defendant was re-arrested, he finally appeared before me for sentencing. Just before I was going to impose a lengthy jail sentence, the court bailiff whispered to me that the defendant was not a member of the Ute Mountain Ute Tribe. The defendant was Southern Ute.

I dismissed the case and released the defendant. Why?

Since the early days of the United States, tribes have been recognized as separate sovereigns with the power to administer justice and operate courts within their reservations. But that power is limited.

Tribes have no criminal jurisdiction over non-Indians. In the 1970s, the United States Supreme Court looked at whether the Suquamish Tribe had jurisdiction to criminally prosecute non-Indians who had engaged tribal police in a high-speed chase back and forth over tribal and non-Indian land. The land in question is a largely non-Indian, upper-middle class bedroom community in the forest overlooking the waters of Puget Sound. In an example of the old maxim that bad facts make bad law, in its 1978 decision of Oliphant vs. Suquamish Indian Tribe, the Supreme Court held that Indian tribes could not exercise criminal jurisdiction over non-Indians.

In 1990, the United States Supreme Court extended Oliphant to eliminate tribal criminal jurisdiction over non-member Indians. Tribal courts were restricted to criminal prosecutions of their own members and could not take action against other Indians who lived on their reservations. In Duro vs. Reina, the court examined whether the Salt River Pima Maricopa Indian Community had jurisdiction to prosecute a member of a California Indian tribe for crimes related to the killing of a 14-year-old. The court determined that the dependent nature of tribes within our system of government deprives them of jurisdiction over all persons who are not enrolled members of the tribe.

The Duro decision was handed down a week before the fugitive defendant in Towaoc came back for sentencing. Regardless of the seriousness of the offense, the Duro decision deprived me of authority to sentence someone who was not a member of the Ute Mountain Ute tribe.

Limitations on tribal criminal jurisdiction imposed by the Supreme Court have crippled tribal efforts to combat crime on their reservations. If the nonmember husband of a tribal member beats or sexually assaults his wife while the couple is living on a reservation, the tribe cannot prosecute the husband. Tribes can only hope that the United States prosecutors will take action. Given the stretched resources of federal prosecutors, this hope has been answered infrequently.

There have been legislative attempts to remedy this problem, although they have not gone far enough. Some Indian Country commentators cynically, but correctly, predicted that Congress would give back criminal jurisdiction over nonmember Indians, but not over non-Indians. This is in fact what Congress did through the Duro-fix when it amended the Indian Civil Rights Act to extend tribal criminal jurisdiction over non-member Indians, but not over non-Indians.

There are now efforts to also extend tribal jurisdiction over non-Indians, at least in a limited way. The Violence Against Women Act reauthorization and the SAVE Native American Women Act, currently working their way through Congress, would give tribal courts criminal jurisdiction over the non-Indian perpetrators of domestic violence committed on reservations. It is unfortunate that this legislation does not extend general criminal jurisdiction over non-Indians to tribes. (Why shouldnt tribes be able to prosecute the non-Indian father of an abused tribal member child, for example?) But at least this legislation is moving the debate in the direction of giving tribes the authority they need to combat crime on their reservations, regardless of the ethnic affiliations of the perpetrators.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.